Taiwan and the Lesson of Chiang Kai-shek: Hard Cuts Soft

Journal of Political Risk, Vol. 7, No. 1, January 2019

By Arthur Waldron, Ph.D.

Taiwan is never to be taken for granted. We really have to get one thing straight, which is that without Chiang Kai-shek (CKS), his mainlander army, and even aspects of his dictatorship, the free Taiwan that we love today simply would not exist. Its natural leaders, both from the Democratic Progressive Party (DPP) and Kuomintang (KMT), would either be long dead or in prison, while its young people, now among the best educated in the world, would be memorizing idiocies from the imperial thoughts of Xi Jinping.

Taiwan president-elect Ma Ying-jeou speaks in front of a statue of late president Chiang Kai-shek in Tashi, Taoyuan county, northern Taiwan on April 5, 2008. Credit: SAM YEH/AFP/Getty Images

That citizens vilify CKS is a disgrace at a time when the People’s Republic of China (PRC) is behaving in a far more menacing way than ever before, and so well armed that the American “experts” who once dismissed the threat as paranoia and rationalization for dictatorship, are now hemming and hawing about how it may be impossible to save Taiwan. CKS saved Taiwan from the Chinese Communist Party (CCP) at a time when no one else would or could have, and when rapid collapse was assumed by all the governments of the world.

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THE BATTLE FOR WEST PAPUA

Journal of Political Risk, Vol. 8, No. 1, January 2019 

By Ben Bohane


Supporters carry West Papuan leader Benny Wenda through Port Vila, Vanuatu, during a visit on December 1, 2016. Pacific island countries across the region are growing in solidarity with the West Papuan independence movement, according to the author. Credit: Ben Bohane.

Reports of the Indonesian military using white phosphorous munitions on West Papuan civilians in December are only the latest horror in a decades-old jungle war forgotten by the world. But new geopolitical maneuvering may soon change the balance of power here, prompting regional concern about an intensifying battle for this rich remote province of Indonesia. It is time for the US and Australia to change policy, complementing Pacific island diplomacy, or risk a major strategic setback at the crossroads of Asia and the Pacific.

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Huawei and China: Not Just Business as Usual

Journal of Political Risk, Vol. 8, No. 1, January 2019 

By Douglas Black

A man looks at his phone near a giant image of the Chinese national flag on the side of a building in Beijing, during the 19th Communist Party Congress on October 23, 2017. GREG BAKER/AFP/Getty Images

To the average consumer around the world, Huawei is likely thought of as a Chinese company that makes nice phones — a “Chinese Apple” of sorts. The average American consumer might associate the firm as one that makes nice phones but, for some vague, political reasons, is not trustworthy. As of early December, the average Canadian consumer might recognize Huawei as the company at the focus of some political gamesmanship between the US, Canada, and China. All of these lay-interpretations are indeed valid, but there is a great deal more going on than revealed by a cursory glance. This article is intended as a brief explainer of Huawei’s history and current market position, the importance of the company to the ruling Communist Party and their strategic goals, and the far-reaching implications of the outcome of the arrest of Chief Financial Officer Meng Wanzhou.

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Chinese Influence and Engagement in Australia and Japan: an Interview with Clive Hamilton

Clive Hamilton in 2004. (Photo by Fairfax Media/Fairfax Media via Getty Images)

Journal of Political Risk, Vol. 7, No. 12, December 2018 

Below is a short interview with Clive Hamilton over email with Anders Corr, October 8-9, 2018.  It covers Hamilton’s views on engagement with China, and the effects of Hamilton’s new book, Silent Invasion: China’s Influence in Australia, in Australia and Japan.

JPR: What has the reaction to your book been so far? Will Australia take the tough actions necessary to effectively decrease Chinese influence and intellectual property theft there?

Hamilton: My book has played a role in raising public awareness, which in turn has increased pressure on the Australian government to take protective measures. A range of legislated and administrative measures have been put in place, with the new foreign interference law at their centre. My book was an immediate best-seller, reflecting the hunger of many Australians for an explanation of the new situation.

JPR: What are the benefits of engagement? Presumably the West obtains information from Chinese nationals overseas just as the Chinese obtain information that they send back to the People’s Republic of China (PRC)? Who gets the better end of this deal? Sub-questions would address two-way intelligence and two-way scientific information.

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Incurring Strategic Risk in the East Asian Littoral: On What Basis?

Journal of Political Risk, Vol. 7, No. 12, December 2018 

By Captain Robert C. Rubel USN (Ret)

The South China Sea (C) is seen on a globe for sale at a bookstore in Beijing on June 15, 2016. China claims nearly all of the South China Sea — a vast tract of water through which a huge chunk of global shipping passes. The Philippines, Taiwan, Brunei, Malaysia and Vietnam have competing claims to parts of the sea, which is believed to harbour significant oil and gas deposits. (Photo credit: GREG BAKER/AFP/Getty Images)

Recently, two US Navy ships conducted a transit of the Taiwan Straits in an exercise of freedom of navigation.  Right now, US naval forces can conduct freedom of navigation exercises throughout most of the East Asian littoral, including the South China Sea (SCS) without serious fear that they will provoke open hostilities with the Peoples Republic of China (PRC), but as the PRC builds up its forces and gains more confidence, such an escalation may become a distinct possibility.  China started building up its “islands” in 2014, and at the time the US did nothing to stop it.  The Permanent Court of Arbitration ruled in the Philippines’ favor in 2015 over the status of Scarborough Shoal and other SCS features, but China ignored the ruling and the US did nothing to enforce the ruling.  Now Beijing has its “great wall of SAMs” there and it will likely take war to change things.  If China decides in the future to threaten or use force to enforce its claims to the entirety of the SCS as sovereign territory, there will be considerable finger-pointing in Washington concerning “who lost the South China Sea.” US inaction concerning the buildup could be attributed to misdiagnosis of Chinese intent or even a desire to accommodate what was seen as strategically harmless initiatives; however one potential explanation that has implications for future decision making is that the Obama Administration did not feel it had the backing of the international community and more specifically the support of regional countries to take action that would risk war.

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Wall Street Elites Against Democracy? A Case Study in Pro-China Media Bias

Press Reaction to the November 2018 speech by Dr. Peter Navarro, Director of the White House Office of Trade and Manufacturing Policy, was biased in a negative direction.

Journal of Political Risk, Vol. 7, No. 12, December 2018 

By Anders Corr, Ph.D.

U.S. President Donald Trump delivers remarks before signing ‘Section 232 Proclamations’ on steel and aluminum imports with (2nd L-R) Treasury Secretary Steven Mnuchin, Commerce Secretary Wilbur Ross, U.S. Trade Representative Robert Lighthizer and White House National Trade Council Director Peter Navarro in the Roosevelt Room of the White House on March 8, 2018 in Washington, DC. Trump signed proclamations that imposed a 25-percent tarriff on imported steel and a 10-percent tarriff on imported alumninum. (Photo by Chip Somodevilla/Getty Images)

Dr. Peter Navarro, Director of the White House Office of Trade and Manufacturing Policy, gave a speech on November 9 at the Center for Strategic and International Studies (CSIS) in Washington, D.C. The title of the speech was “Economic Security as National Security”, which Dr. Navarro, a Harvard-educated economist, argues is the maxim of the Trump Administration. After the speech, Dr. Navarro was attacked in the media, but not about his main points. The negative, and one might argue biased, coverage came from the Wall Street Journal, CNBC, the Atlantic, and Director of the National Economic Council, Larry Kudlow, among others. The negative response centered on Dr. Navarro’s controversial claim that Wall Street elites have undue influence on U.S. policy having to do with China.  Tempers were likely frayed at the time due to planning, negotiations and internal maneuvering in advance of a high stakes late November meeting then being planned between Presidents Trump and Xi Jinping at the G-20 meeting in Argentina. Worries were high that lack of progress on at least the outline of an agreement at the meeting could lead to deepening tariffs between the countries, and fears in the financial sector of falling stock markets or even a recession. But the bias and infighting of the attacks were unbecoming of these media outlets, and of Mr. Kudlow, the Director of the National Economic Council.

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Boycott the Chinese Language: Standard Mandarin is the Medium of Chinese Communist Party Expansion

Journal of Political Risk, Vol. 7, No. 11, November 2018 

By Anders Corr, Ph.D.

These urban traffic signs in English and Mandarin are located in the Chinatown district of Seattle. Consciously preferring the use of traditional characters and Taiwanese Mandarin in the U.S. would be a statement against the Chinese Communist Party and its usage of Standard Mandarin and simplified characters. Interestingly, the characters in these street signs are the same in the traditional and simplified sets.

China is one of history’s most dangerous countries. In August, the United Nations reported that China is holding approximately one million minority Muslims in Xinjiang concentration camps. China supports anti-democratic regimes and terrorist groups worldwide. Its military is seeking to expand its territory in: Japanese and South Korean areas of the East China Sea; Philippine, Malaysian, Bruneian, Indonesian, and Vietnamese parts of the South China Sea; and Indian and Bhutanese territory in the Himalayan mountains. President Xi Jinping has since 2013 increased military spending, hyped China’s nationalism, repressed minorities and human rights activists, eliminated term limits on his increasingly personal form of rule, and extended the geographic reach and individual depth of state surveillance.

Average citizens in democracies who see this trend can feel powerless in response. But there are tools at the disposal of empowered citizens and social movements to encourage, complement and accentuate actions taken by our democratic governments. Both citizen and government action is essential to encourage democracy and democratic elements in China, history’s most powerful totalitarian state.

These tools include consumer boycotts and protests at Chinese embassies, for example. But there is an additional social movement tactic that could powerfully communicate the world’s criticism: a boycott of mainland China’s national language, Standard Mandarin, a combination of the Putonghua dialect spoken in Beijing with simplified characters. Putonghua is also called Modern Standard Chinese, which was promoted since the 1940s, and which the People’s Republic of China (PRC) and Chinese Communist Party (CCP) have zealously promoted since 1956 as a form of increasing state control beyond Beijing. I here call the combination of simplified characters and Putonghua, “PRC Mandarin” or “CCP Chinese”. Taiwan uses traditional characters and speaks a slight variant of Mandarin called Taiwanese Mandarin (Guoyu).

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Japan Forgetting: A Syndrome Afflicting U.S. Foreign Policy

Journal of Political Risk, Vol. 7, No. 10, October 2018 

By Arthur Waldron, Ph.D.

JAKARTA, INDONESIA SEPTEMBER 18: The silhouette of two Indonesian Navy personnel guards the JS Suzutsuki 117 docked at Tanjung Priok port, Jakarta, Indonesia on September 18 2018. The arrival of three Japanese Navy warships, including JS Jaga 184, JS Suzutsuki 117 and JS Inazuma 105 along with 800 soldiers, aims to strengthen diplomatic ties on the 60 years anniversary of the two countries relations. (Photo by Eko Siswono Toyudho/Anadolu Agency/Getty Images)

Hearing an analyst say recently that we must come to terms with China, led me to spit out my coffee and ask myself, more importantly, “What about Japan?”

Forgetting about Japan, or what might be called “Japan forgetting”, is a besetting failure of American foreign policy. It has been since the early years of the last century, most notably after 1922 when the Anglo-Japanese alliance, a source of stability comparable to the 1887 Reinsurance Treaty of Bismarck and Wilhelm I. In 1890 when Wilhelm II refused to renew the treaty, leading in part to World War I.

The end of the Anglo-Japanese alliance came with the Washington Conference of 1921-22. If you are serious about understanding China, read the “Conference on the Limitation of Armaments”, which was published by the U.S. Government, half in English and half in schoolboy French, so it is not as formidable as it appears. It is the indispensable starting point.

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Remove Duterte And Modernize The Armed Forces Philippines

Journal of Political Risk, Vol. 7, No. 10, October 2018 

By an Anonymous Filipino

Troops pledge their allegiance to the Philippine government and constitution during a prayer rally in Camp Aguinaldo, Quezon City suburban Manila on May 3, 2010. Photo: Jay Directo/AFP/Getty Images.

This is a critical time for the Philippines, in terms of economics, politics, and national defense. Immediately at the start of President Rodrigo Duterte’s term the congress was already submissive to him. There were just a few dissenting Senators. But Duterte is taking them down one by one, especially the opposition stalwarts. Senator Leila de Lima was accused of a sham case, conspiracy to commit illegal drug trading (1), and is now in prison. Senator Antonio Trillanes is having his amnesty revoked [2]. Duterte is under criminal investigation, breaking the Constitution, running the Philippines into the ground, and gradually giving our sovereignty away to China. The Armed Forces of the Philippines (AFP) is slowly losing its allies and competitive edge against China, the Philippines’ biggest threat. Duterte should immediately be removed, and the AFP should seek the help from its traditional allies to quickly modernize.

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Is The U.S. Doing Enough To Advance Religious Freedom Globally?

Journal of Political Risk, Vol. 7, No. 8, August 2018 

By Terri Marsh, Ph.D., Esq.

Photo taken in February 2018 shows police officers patrolling in the Xinjiang Uyghur Autonomous Region of China. Photo by Kyodo News via Getty Images.

We are facing a crisis as regards U.S. corporations profiting from the sale of technology indispensable to the perpetration of egregious human rights violations in the People’s Republic of China. In 2007 Jerry Yang, CEO of Yahoo! was criticized by U.S. Representative Tom Lantos, chairman of the U.S. House Committee on Foreign Affairs, for Yahoo’s role in the arrest and imprisonment of Chinese journalist and democracy advocate Shi Tao. The case describes the actions that Yahoo! had taken to grow its business in China, complying with a government request for the identity of a Yahoo! user, which subsequently resulted in Shi Tao’s detention and torture. Cisco Systems Inc. arguably facilitated the development of the Golden Shield apparatus in China that has caught Falun Gong, Tibetan Buddhist and Uyghur dissidents in its torture/persecution network. See “Index of Relevant Allegations,” available upon request. These are but a few of the most salient examples.

While U.S. federal courts currently have jurisdiction over U.S. corporations’ international law violations under the Alien Tort Statute, the Supreme Court may deny the grant of jurisdiction, with the appointment of Judge Kavanaugh, as discussed below. The Alien Tort Statute, which became law in 1789 as part of the First Judiciary Act, enabled foreign citizens to seek justice for injuries caused by acts of piracy, which by their nature routinely occurred outside the territory of the United States. The operative part of the Alien Tort Statute (“ATS”) grants jurisdiction for torts in “violation of the law of nations or a treaty of the United States.” [1] Until 1980, the statute was used primarily for piracy cases; however, in 1980, nearly 200 years after the first Judiciary Act, the statue has been applied to human rights litigation. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

Since the 1980s, the federal courts have been developing standards to define the reach of the statute. In Sosa v. Alvarez-Machain, 542 U.S. 692, 748 (2004), the Supreme Court limited the jurisdiction of the ATS to a narrow range of violations that are “specific, universal, and obligatory.” [2] In 2011, the Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, to decide whether federal courts have jurisdiction over corporations for enabling egregious human rights abuses overseas. However, because the Supreme Court resolved Kiobel on a different ground, it was not until 2017 in Jesner v Arab Bank PLC, 38 S. Ct. 1386 (April 2018) that the Supreme Court addressed the corporate liability question. In Jesner, it was alleged that the Arab Bank aided and abetted the terrorist organization allegedly responsible for terrorist attacks by maintaining bank accounts that Arab Bank knew would be used to fund terrorism and by identifying the relatives of suicide bombers so that they could be compensated with so called “martyrdom payments.” In a majority opinion authored by Justice Kennedy, the Court concluded that foreign corporations may not be defendants in suits brought under the ATS. See Jesner at 6-11, 18-19, and 25-27. However, the Court did not foreclose suits against U.S. corporations for aiding and abetting egregious human rights violations abroad.[3]

The dissent authored by Justice Gorsuch in Jesner and that authored by Judge Kavanaugh in an earlier D.C. Circuit case signal a shift away from the status quo; that is, it is likely that U.S. corporations – Yahoo, Google, Cisco, Apple and so on, may be able to further egregious human rights abuses overseas if Judge Kavanaugh is confirmed.

Justice Gorsuch’s Opinion in Jesner

Justice Gorsuch authored a concurrence in Jesner.  Concurring with the majority opinion, he distinguished cases filed against foreign corporations, which “risk reprisals from [that] country” from those filed against U.S. corporations that “ensure our citizens abide by the law of nations and avoid reprisals against this country.” Jesner at 1419. However, Justice Gorsuch has indicated his opposition to the use of the ATS in the human rights contexts. Alito appears to agree. See Just Security, “Jenser v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations,” available at https://www.justsecurity.org/55404/jesner-v-arab-bank-supreme-court-preserves-possibility-human-rights-suits-u-s-corporations/. In other words, Jesner did not quite settle the question of corporate liability.

Judge Kavanaugh’s anti-ATS/Corporate Stance

In Doe v. Exxon Mobil Corp., 397 U.S. App. D.C. 371, a group of Indonesian villagers sued Exxon Mobil, claiming that its security forces near an Indonesian plant “committed murder, torture, sexual assault, battery, false imprisonment,” and other misconduct. When a lower court rejected an Exxon motion to dismiss the case at a very early stage, the company filed an appeal, seeking to get the appeals court to take the very unusual step of reversing the preliminary decision or issuing a writ of mandamus to throw out the entire case.  The D.C. Circuit concluded that aiding and abetting is well established under the Alien Tort Statute (ATS), Exxon at 399, and neither the text, history, nor purpose of the ATS supported corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. Id. at 400-419. Dissenting in part, Judge Kavanaugh opined that the plaintiffs’ ATS claims should have been dismissed, inter alia, because: (1) the ATS does not apply to conduct that occurred in foreign nations;[4] or (2) the ATS does not apply to claims against corporations. Id. at 432-434. In light of Judge Kavanaugh’s dissent in Exxon, Judge Kavanaugh seems ready to cast a (perhaps deciding) vote against ATS corporate liability.

Competing Values

The Filartiga line of cases reflect an important principle of international law, that is, that some crimes are so heinous that the perpetrators can be brought to justice for crimes perpetrated overseas.  In the vast majority of these cases, Plaintiffs seek redress not merely for acts that are unlawful, but more particularly, for violations of jus cogens norms, including but not limited to genocide, widespread torture and slavery. As the District Court in Presbyterian Church of Sudan v. Talisman Energy Inc. and the Republic of Sudan, 244 F. Supp. 2d 289 (S. D. N.Y.), noted, jus cogens violations are fundamentally different from other international law violations by the “depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce.” [5] In a similar vein, the Second Circuit said in Filartiga, “[F]or purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.”[6]

According to the testimonials of survivors, these cases have helped heal and empower them by providing survivors and their families with an experience of justice, a sense of meaning in their survival, renewed trust in people and institutions, and a tremendous satisfaction in knowing that they have brought dignity to themselves and to the memories of those who were killed. By uncovering facts and witnesses, these cases also establish a record of accountability through, e.g., the publication of reports. Cases filed against U.S. corporations have additional advantages including a deterrence effect. Moreover, by determining that no U.S. corporations may be sued under the ATS, we are immunizing these corporations from liability for human rights abuses, no matter how egregious they may be.

Of course, one might argue that the United States is putting U.S. corporations at a disadvantage with these laws. If the goal of a U.S. corporation is solely to make a profit regardless of the cost, then any laws that hinders that goal, including tax evasion, corporate fraud, bribery and money laundering also place U.S. corporations at a disadvantage, especially when compared with corporations that operate as state-run enterprises in such authoritarian regimes as China, where they are permitted to operate without such constraints. The egregious nature of the violations including the “toll of human suffering they inflict upon the victims,” would seem to further militate in favor of corporate liability in a well-defined range of circumstances.[7]

In addition, many would agree that these laws give the United States a public relations boon globally in terms of proving our support for human rights. As President Bush (43) said when he signed the Torture Victim Protection Act of 1991 into law (a statute that does not cover corporate violations):

I am signing into law H.R. 2092, the “Torture Victim Protection Act of 1991,” because of my strong and continuing commitment to advancing respect for and protection of human rights throughout the world. The United States must continue its vigorous efforts to bring the practice of torture and other gross human rights abuses to an end.”  See President Bush’s Signing Statement, March 16, 1992, Volume 28-Number 11, pp. 431-481.

The “Bush” principle cannot be upheld while our corporations trample upon these very values overseas.

Some have argued that these cases impose a corporate tax on U.S. corporations. However, the commission of such human rights violations as genocide, widespread torture, and slavery are violations that are inherently wrong wherever are perpetrated. Moreover, the law of aiding and abetting is quite stringent requiring that a corporation know that the product they sell will be used to perpetrate acts of torture (or the like) and nonetheless customize the product for that purpose. Unless one believes corporations may engage in the business of “torture” in order to enhance profits and gain market advantage in authoritarian regimes, this is not so much a “human rights tax” as a limit beyond which corporations should not tread. Indeed, to immunize corporations for the heinous crimes they further overseas is to place them above or outside of the law.

Dr. Terri Marsh is the Executive Director and Senior Litigation partner of the Human Rights Law Foundation, which she launched in 2005. She holds a Ph.D. in Classics from SUNY and a J.D. from New York University School of Law. Following law school, she worked as a consultant for the Legal Defense and Education Fund of the National Organization for Women, the Center for Law and Social Policy, and as the Director of a D.C. Superior Court Diversion Court for juvenile offenders in Washington D.C. She is an active member of the D.C. State Bar and of the federal bars of the Illinois and the District of Columbia, the bars of the First Circuit, Second Circuit, Seventh Circuit, and Supreme Court of the United States of America. She serves on the board of several China related organizations. She is the author of numerous professional articles and presentations on Western moral philosophy. JPR Status: Opinion.

[1] The “Law of Nations” is defined by Blackstone as “a system of rules … established by universal consent among the civilized inhabitance of the world; in order to decide all disputes which … must frequently occur between two or more independent nations, and the individuals belonging to each.” 2 William Blackstone, Commentaries *66, available at http://www.lonang.com/exlibirs/blackstone/bla-405.htm.

[2] This has generally been interpreted to include such egregious violations as torture, extrajudicial killing, enslavement, genocide and other crimes against humanity.

[3] Aiding and abetting has a high threshold: one must show that the aider knew what the product would be used for and nonetheless tailored it for that purpose. In other words, the net is not so wide as to entrap the innocent corporation engaged in routine corporate conduct.

[4] Here, he is requiring that a corporation or individual directly cause the abuses overseas, thereby foreclosing aiding and abetting liability. As a result, he appears to be willing to immunize corporations that aid and abet such abuses.

[5] In a similar vein, the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M 679 defines a jus cogens norm of international law as “a norm accepted and recognized by the international community as a norm from which no derogation is permitted. [5] Vienne Convention, art. 53. See also RESTATEMENT THIRD OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. (d) adopting the Vienna Convention’s definition of jus cogens as binding on all nations and “derived from values taken to be fundamental by the international community rather than from the … choices of nations.”

[6] Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)

[7] As many have observed, there are ample constraints in place. The Department of State may intervene in a case it opines interferes with serious foreign policy concerns. Corporations are not held liable for routine corporate behavior. To the contrary, it must be shown that the corporation actually aided and abetted said violations. Cases may be dismissed if a remedy is available in the place where the principal actors perpetrated the crimes.